Court Rejects Case on Summer-School Eligibility for Disabled Students

Washington--The U.S. Supreme Court last week declined to review a
case over what standards school districts should use in determining
whether a child with a disability is entitled to summer-school
services.

Numerous federal courts have determined that, under the Individuals
with Disabilities Education Act, handicapped students are entitled to
education beyond the normal school year if, without it, their skills
would erode over the summer to the point that their regular education
program would be jeopardized.

Special-education law experts said confusion has arisen, however,
over what methods should be used to predict whether a student will lose
educational ground.

The Justices' decision lets stand a ruling by the U.S. Court of
Appeals for the 10th Circuit in Independent School District No. 4 v.
Johnson (Case No. 90-1421), which involves a child with autism who was
denied a summer program by the Tulsa, Okla., school district.

In December, the appellate court ordered that additional hearings be
held in the case because, it said, the hearing officer should have
considered the child's "educational, home, and community life'' before
deciding whether the child was entitled to extended-year services.

Instead, the hearing officer had based his decision solely on what
is known in the field as a "regression/recoupment analysis"--a
determination of whether the educational skills lost over the summer
could be recouped in a reasonable amount of time at the start of the
next school year.

In the Tulsa case, the hearing officer had reasoned that the child's
education program would not suffer significantly without an
extended-year program because her teachers had testified that she had
not lost ground over previous summers in which she had not been
enrolled in such a program.

Tulsa school officials had asked the Supreme Court to rule in the
case because, they said, the 10th Circuit's ruling differs from those
in four other circuits in which the courts have upheld the use of
regression/recoupment analysis.

Last month, the Supreme Court turned down a case in which the Court
of Appeals for the Sixth Circuit had made a similar finding. (See
Education Week, April 3, 1991.)

In its brief to the Court, Tulsa school officials said the 10th
Circuit Court's ruling "creates unnecessary confusion" for school
districts serving millions of handicapped children.

In addition to Oklahoma, the 10th Circuit's ruling applies to
schools in Utah, Colorado, Wyoming, Kansas, and New Mexico.

Special-education law experts last week speculated, however, that
con fusion over the issue likely exists nationwide.

"Most schools seem to use the regression/recoupment standard, and
others don't have any idea what that is," said S. James Rosenfeld,
presi dent and publisher of Edlaw Inc.

The kind of "multifaceted approach" advocated by the 10th Circuit
Court requires school officials to also take into account the ability
of par ents to provide an education structure at home, the child's
behavioral and physical problems, and the ability of the child to
interact with nondisabled children, among other factors, in de
termining whether a child should re ceive summer services.

Child-Abuse Case

Also last week, the High Court agreed to decide under what circum
stances sexually abused children can be considered "unavailable" for
trial- court action and thus spared confron tation with their alleged
abusers.

The Court agreed to hear White v. Illinois (No. 90-6113), in which a
con victed child abuser claims that his constitutional rights were
violated because the 4-year-old girl he was found guilty of molesting
did not testify. Instead, the child's mother, baby sitter, and other
adults testified about what the victim had told them.

Illinois courts accepted the prac tice as an allowable exception to
the usual rule that hearsay testimony is not permissible.

Now, a spokesman for the Illinois attorney general's office said,
the Supreme Court must decide wheth er prosecutors must prove that an
abused child is indeed "unavailable," or incapable of testifying, and
whether they must still prove the child's "unavailability" if "hearsay
exceptions" are in place.

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